Criminal Code

Marginal note:Sexual exploitation of person with disability

• 153.1 (1) Every person who is in a position of trust or authority towards a person with a mental or physical disability or who is a person with whom a person with a mental or physical disability is in a relationship of dependency and who, for a sexual purpose, counsels or incites that person to touch, without that person’s consent, his or her own body, the body of the person who so counsels or incites, or the body of any other person, directly or indirectly, with a part of the body or with an object, is guilty of

  • (a) an indictable offence and liable to imprisonment for a term not exceeding five years; or

  • (b) an offence punishable on summary conviction.

• Marginal note:Definition of consent

  (2) Subject to subsection (3), consent means, for the purposes of this section, the voluntary agreement of the complainant to engage in the sexual activity in question.

• Marginal note:Consent

  (2.1) Consent must be present at the time the sexual activity in question takes place.

• Marginal note:Question of law

  (2.2) The question of whether no consent is obtained under subsection (3) or (4) or 265(3) is a question of law.

• Marginal note:When no consent obtained

  (3) For the purposes of this section, no consent is obtained if

  • (a) the agreement is expressed by the words or conduct of a person other than the complainant;

  • (a.1) the complainant is unconscious;

  • (b) the complainant is incapable of consenting to the activity for any reason other than the one referred to in paragraph (a.1);

  • (c) the accused counsels or incites the complainant to engage in the activity by abusing a position of trust, power or authority;

  • (d) the complainant expresses, by words or conduct, a lack of agreement to engage in the activity; or

  • (e) the complainant, having consented to engage in sexual activity, expresses, by words or conduct, a lack of agreement to continue to engage in the activity.

• Marginal note:Subsection (3) not limiting

  (4) Nothing in subsection (3) shall be construed as limiting the circumstances in which no consent is obtained.

• Marginal note:When belief in consent not a defence

  (5) It is not a defence to a charge under this section that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge if

  • (a) the accused’s belief arose from

    • (i) the accused’s self-induced intoxication,

    • (ii) the accused’s recklessness or wilful blindness, or

    • (iii) any circumstance referred to in subsection (3) or (4) or 265(3) in which no consent is obtained;

  • (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or

  • (c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.

• Marginal note:Accused’s belief as to consent

  (6) If an accused alleges that he or she believed that the complainant consented to the conduct that is the subject-matter of the charge, a judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute a defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief.